Upstate judges rule towns have right to ban drilling

BY DAN HUST, FEBRUARY 28, 2012 – NEW YORK STATE — In two separate decisions last week, two upstate New York judges ruled that local municipalities are allowed to prohibit natural gas drilling within their boundaries. The rulings are likely to be appealed, but they mark a new chapter in the ongoing battle over drilling. Significantly, both judges independently came to the conclusion that two prior cases involving the state’s Mined Land Reclamation Law (MLRL) applied to these two cases, which involved the state’s Oil, Gas and Solution Mining Law (OGSML). The two prior cases had established that townships, villages and counties in New York State retained the right to dictate land uses – under the zoning authority granted them by the state – pertaining to mining.
NYS Supreme Court judges Philip Rumsey and Donald Cerio Jr. said that authority logically applies as well to gas drilling, even though much of the activity is underground.
Thus in a case involving the Anschutz Exploration Corporation versus the Town of Dryden (near Ithaca) and another involving a pro-drilling property owner versus the Town of Middlefield (near Cooperstown), the judges agreed that the respective townships’ zoning bans on gas drilling were legitimate.
“It’s a huge victory and a huge morale-booster,” said Catskill Mountainkeeper Executive Director Ramsay Adams yesterday. “… It established the fact that towns do have the right [to zone out gas drilling activities].” Though towns may still rack up legal fees in defending such bans in court, Adams felt the rulings reduce the ability of gas companies to recoup alleged losses suffered by such bans. “The ominous threat of the industry bankrupting towns is not there in the way it was before,” he said.
Mountainkeeper played a supporting role in both cases, though Adams gave primary credit to lawyers David and Helen Slottje, plus Earthjustice’s Deborah Goldberg.
“They really were the leaders of this effort,” he stated. “They stuck to their guns … and they won!”
As a result, Adams expects many municipalities to adopt similar bans statewide, possibly before Department of Environmental Conservation (DEC) officials finalize new rules on drilling involving fracking. Locally, Tusten already has banned drilling, with Highland, Lumberland and Bethel expected to follow in the months ahead.
“We believe this is going to become a major part of the effort to protect communities from fracking,” Adams explained of the twin court decisions. “… I think there is going to be a lot of movement in towns now.”
He said Mountainkeeper will be there to help – and will continue advocating for a total statewide ban. “Fracking is not safe,” he charged. “… And we believe that most people in most towns don’t want it.” In the meantime, Adams isn’t sure either case will be appealed, saying Mountainkeeper has heard “mixed signals” from the gas industry and supporters.READ THE ENTIRE STORY AT THE SULLIVAN COUNTY DEMOCRAT HERE